BURKE v. BURKE, 801 S.W.2d 691 (1991) Lexie BURKE, Appellant, v. Donald E. BURKE and Beatrice Bates, Appellees. No. 89-CA-723-MR.

Court of Appeals of Kentucky.

October 12, 1990.

Rehearing Denied January 25, 1991.

Appeal from the Circuit Court, Pike County, Charles E. Lowe, J.
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Francis D. Burke, Pikeville, for appellant.

Lawrence R. Webster, Pikeville, for appellees.

Before HOWERTON, C.J., and CLAYTON and McDONALD, JJ.

McDONALD, Judge.

James Heber Burke died testate in Pike County on August 17,
1985. His will left everything to his wife of one month, Lexie
Burke, and appointed her executrix of his estate. Heber's
children, Beatrice Bates and Donald Burke, challenged the will,
claiming undue influence and lack of testamentary capacity. A
jury trial resulted in a verdict that the document probated was
not the will of Heber Burke; Lexie's motion for a judgment
notwithstanding the verdict was denied, and she appealed.

Heber Burke originally hailed from Pike County but he spent
most of his life in Ohio, where he accumulated a relatively
substantial amount of property, including fourteen pieces of
real property, all acquired with the substantial contribution
of his wife. On February 19, 1985, his wife of 53 years,
Evelyn, died. They had two children, four grandchildren and
four great-grandchildren. Much of the evidence concerning
Heber's alleged mental incapacity stems from his behavior
following Evelyn's death. According to the plaintiffs'
witnesses, during this time Heber drank heavily and constantly;
had frequent crying spells; repeatedly visited his wife's
grave; tried to dig her up so that he could talk to her; and
had hallucinations, talking to people who weren't present and
claiming that Evelyn visited him regularly at night, which
frightened him into sleeping in the attic.

After several months of this, around the first of June, 1985,
Heber moved to Pike County and bought a house there. Later that
month he told his children he was going to marry Lexie Damron,
a widow who attended the same Baptist church as
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he. Lexie and Heber were married on July 20. On the 27th, Heber
executed the will which is the subject of the present
controversy. He died three weeks later.

After the plaintiffs had presented their evidence, witnesses
for the defense — friends and relatives of Heber's who had
known him in Pike County — testified that they had never known
Heber to drink and that, while he seemed saddened by his first
wife's death, he was not incapacitated by it. Lexie herself
testified that she had never seen Heber drink or cry. Her
argument on appeal, as before the trial court, is that this
case should never have reached the jury as there was a
"complete lack" of evidence of either undue influence or
incapacity.

A survey of the law on this subject yields a series of
contradictory statements and policies. On the one hand courts
stoutly proclaim the policy of carrying out the wishes of the
deceased, even if they are arbitrary or unfair. "[T]he courts
guard jealously the rights of all rational people, including
the aged, the infirm, the forgetful and the queer, to make
wills sufficient to withstand the attacks of those left out and
those dissatisfied with the expressed desires of the departed."
Tye v. Tye, 312 Ky. 812, 229 S.W.2d 973, 975 (1950); citing
Kentucky Trust Co. v. Gore, 302 Ky. 1, 192 S.W.2d 749, 752
(1946). The testator must have sufficient mind to know his
property, the objects of his bounty and his duties to them,
Waggener v. General Association of Baptists, Ky.,
306 S.W.2d 271, 273 (1957); but he is perfectly free to ignore the latter
if he is otherwise of sound mind. "Every man possessing the
requisite mental powers may dispose of his property by will in
any way he may desire, and a jury will not be permitted to
overthrow it, and to make a will for him to accord with their
ideas of justice and propriety." Cecil's Ex'rs. v. Anhier,
176 Ky. 198, 195 S.W. 837, 846 (1917); see also Faulkes v.
Brummett's Adm'r, 305 Ky. 434, 204 S.W.2d 493, 496 (1947).

It has also been said that to invalidate a will on the ground
of undue influence, the contestant must show more than the mere
opportunity to exercise it. Bodine v. Bodine, 241 Ky. 706,
44 S.W.2d 840, 843 (1931). There must be some specific evidence of
circumstances from which it can be reasonably inferred that
undue influence was in fact exercised. Copley v. Craft, Ky.,
312 S.W.2d 899, 900 (1958). Furthermore, "reasonable influence
obtained by acts of kindness or by argument addressed to the
understanding is not in law an undue influence." Faulkes,
supra. To justify setting aside a will the influence exercised
must be such that it "obtains dominion over the mind of the
testator to such an extent as to destroy his free agency in the
disposal of his estate, and constrains him to do that which he
would not have done if left to the free exercise of his
judgment." Copley, supra.

After issuing these stern admonitions, however, the law
reverses itself somewhat to lower the contestant's burden of
proof when allegations of undue influence are coupled with an
unequal or unnatural disposition, allegations of mental
incapacity, or both. See Waggener, supra at 274; Pardue v.
Pardue, 312 Ky. 370, 227 S.W.2d 403, 406 (1950). Thus, a
combination of these will usually suffice to overcome a
directed verdict. "[W]hen slight evidence of the exercise of
undue influence and the lack of mental capacity is coupled with
evidence of an unequal or unnatural disposition, it is enough
to take the case to the jury." Gibson v. Gipson, Ky.,
426 S.W.2d 927, 928 (1968).

We realize that in many if not most cases, it would not be
considered "unnatural" to leave everything to one's spouse to
the exclusion of one's children. However, the deceased wife,
Evelyn, made life-long contributions to the accumulation of
Heber's estate and, in the ordinary sense, it is imperceptible
that her children would be turned away empty-handed. But the
law would permit such harshness unless, by close scrutiny,
other factors demonstrate an unacceptable and unnatural
disposition of one's estate.

Herein, the jury was presented with a scenario in which the
entire relationship between Heber and Lexie, from courtship to
death, was of a scant three months'
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duration. One of the "badges" of undue influence is "a lately
developed and comparatively short period of close relationship"
between the testator and the principal beneficiary. Belcher v.
Somerville, Ky., 413 S.W.2d 620, 622 (1967). There was
evidence, which the jury could have believed, of other "badges"
of undue influence, including a will arguably unnatural in its
provisions, as well as participation by the beneficiary in the
physical preparation of the will (which was drawn up by Lexie's
lawyer, and in her presence). There was also at least some
evidence of mental incapacity in the form of excessive
alcoholism and hallucinations. See Duval v. Duval, 249 Ky. 186,
60 S.W.2d 351 (1933); Osborn v. Paul, 272 Ky. 694,
114 S.W.2d 1134, 1138 (1938) (wills invalidated on grounds of incapacity
"largely supported by the fact of excessive use of intoxicating
liquor by the testator"). This proof was sufficient to take
this case to the jury.

It is certainly true that there was contrary evidence that
Heber was of sound mind and uninfluenced by anything but his
own wishes. We are not unmindful of the possibility that the
jury invalidated this will simply because it seemed unfair.
Nevertheless, "when there is substantial evidence to support a
verdict, though we of the courts may think it outweighed, we
are compelled to uphold the jury's conclusions." Roland v.
Eibeck, Ky., 385 S.W.2d 37, 40 (1964).

For the foregoing reasons, the judgment of the Pike Circuit
Court is affirmed.

All concur.

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